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County of Amador, California v. United States Department of Interior

United States Court of Appeals, Ninth Circuit

October 6, 2017

County of Amador, California, Plaintiff-Appellant,
United States Department of the Interior; Ryan K. Zinke, Secretary of the United States Department of Interior; Kevin K. Washburn, Acting Assistant Secretary of Indian Affairs, United States Department of Interior, Defendants-Appellees, Ione Band of Miwok Indians, Intervenor-Defendant-Appellee.

          Argued and Submitted July 14, 2017 San Francisco, California

         Appeal from the United States District Court No. 2:12-cv-01710-TLN-CKD for the Eastern District of California Troy L. Nunley, District Judge, Presiding

          Christopher E. Skinnell (argued) and James R. Parrinello, Nielsen Merksamer Parrinello Gross & Leoni LLP, San Rafael, California; Cathy A. Christian, Nielsen Merksamer Parrinello Gross & Leoni LLP, Sacramento, California; for Plaintiff-Appellant.

          John L. Smeltzer (argued), Katherine J. Barton, and Judith Rabinowitz, Attorneys; John C. Cruden, Assistant Attorney General; Environment and Natural Resources Division, United States Department of Justice, Washington, D.C.; Matthew Kelly, Office of the Solicitor, United States Department of the Interior, Washington, D.C.; for Defendants-Appellees.

          Jerome L. Levine (argued) and Timothy Q. Evans, Holland & Knight LLP, Los Angeles, California, for Intervenor-Defendant-Appellee.

          Before: Susan P. Graber and Michelle T. Friedland, Circuit Judges, and Jeremy D. Fogel [*] District Judge.


         Tribal Issues

         The panel affirmed the district court's summary judgment in favor of the U.S. Department of the Interior and the Ione Band of Miwok Indians in a case involving a proposed casino in Amador County, California, and the County's challenge to a Department of the Interior 2012 record of decision in which the agency announced its intention to take land into trust - the Plymouth Parcels - for the benefit of the Ione Band, and to allow the Ione Band to build a casino complex on the land.

         In Carcieri v. Salazar, 555 U.S. 379, 395 (2009), the U.S. Supreme Court ruled that a tribe must have been "under Federal jurisdiction" at the time the Indian Reorganization Act ("IRA") was enacted in 1934 in order to qualify to have lands taken into trust for its benefit.

         The panel held that a tribe qualifies to have land taken into trust for its benefit under 25 U.S.C. § 5108 of the IRA if it was "under Federal jurisdiction" as of June 18, 1934, and is "recognized" at the time the decision was made to take land into trust. The panel also held that the Department of the Interior did not err in determining that the Ione Band was "under Federal jurisdiction" at the time that the IRA became law in 1934.

         Finally, the panel held that Department of the Interior did not err in allowing the Ione Band to conduct gaming operations on the Plymouth Parcels under the "restored tribe" exception of the Indian Gaming Regulatory Act. The panel held that the agency's decision to grandfather in the Ione Band under 25 C.F.R. § 292.26(b) was permissible.



         This case involves a dispute over a proposed casino in Amador County, California. Plaintiff, the County of Amador ("County"), challenges a 2012 record of decision ("ROD") issued by the United States Department of the Interior ("Interior") in which the agency announced its intention to take land into trust for the benefit of the Ione Band of Miwok Indians ("Ione Band" or "Band"). The ROD also allowed the Ione Band to build a casino complex and conduct gaming on the land once it is taken into trust. Reviewing Interior's decision under the Administrative Procedure Act ("APA"), we conclude that the agency did not err. Accordingly, we affirm the district court's award of summary judgment to Interior and the Ione Band.


         Amador County is located roughly 45 miles southeast of Sacramento in the foothills of the Sierra Nevada Mountains. The county is rural, with a population density well below the state average, and it contains just five incorporated cities.

         The Ione Band's origins lie in the amalgamation of several "tribelets" indigenous to Amador County and the surrounding area. The tribelets, which included the Northern Sierra Miwok and the Wapumne, were independent, self-governing groups that maintained their own territories but regularly interacted with one another. The political and geographic lines separating the tribelets began to erode in the 18th and early 19th centuries, as Spanish and Mexican missionary efforts and the arrival of white settlers in the area decimated the Native American population and displaced many villages. The discovery of gold in the area in 1848 and the subsequent inpouring of miners and prospectors accelerated the process of amalgamation. For instance, the Foothill Nisenan living in the American River drainage were displaced by miners and were forced to move south, where they joined with Plains Miwok and Northern Sierra Miwok.

         Conflicts arose between the miners and settlers who flooded into California beginning in 1848, on the one hand, and the Native Americans already in the vicinity, on the other. The federal government tried to ameliorate the situation by convincing Native Americans to give up their lands and move to "safer" areas. In 1851, federal agents negotiated 18 treaties with Native Americans that required such resettlement. One of those treaties-Treaty J-was signed by members of some of the tribelets that would eventually blend together to form the Ione Band. Treaty J set aside land for those tribelets in what is now Amador County. The land, which included the site of the proposed casino, was to be "set apart forever for the sole use and occupancy of the tribes whose representatives signed the treaty." Neither Treaty J nor any of the other treaties ever went into effect, however. The California legislature, which opposed the assignment of the lands to Native Americans, successfully lobbied against the treaties and, in 1852, the United States Senate voted not to ratify the treaties. Larisa K. Miller, The Secret Treaties With California's Indians, Prologue Magazine, Fall/Winter 2013.

         Throughout the latter half of the 19th century, Native Americans in the Amador County area continued to be displaced by white settlers. By 1900, most Native Americans lived either in remote settlements or on the edges of towns. They were largely destitute and often lacked permanent homes. Congress felt that California was largely responsible for this state of affairs and would have to play a primary role in addressing the problem of the "landless Indians, " but its position changed in 1905 when the 18 unratified treaties from the 1850s were brought to light. Id. The treaties had been printed "in confidence" in 1852 and could not be accessed by the public from the Senate archives, so they had been largely forgotten. Id. at 43. Two activists convinced Senator Thomas Bard of California to have the treaties printed. After he did, Congress was forced to acknowledge the role that it had played in creating the problem of landless Indians in California. Id. Capitalizing on the change in sentiment among his colleagues, Senator Bard proposed an amendment to the Indian Appropriations Act of 1905 that authorized the Secretary of the Interior ("Secretary") to "investigate . . . existing conditions of the California Indians and to report to Congress . . . some plan to improve the same." Pub. L. No. 58-212, 33 Stat. 1048, 1058 (1905).

         The Secretary tasked C.E. Kelsey with conducting the investigation into the condition of Native Americans in California. In Kelsey's 1906 report to the Commissioner of Indian Affairs, he recommended that Native Americans in Northern California who were "landless through past acts [or] omissions of the National Government . . . receive land in lieu of any claims they may have against the Government, moral or otherwise; that the land . . . be of good quality with proper water supply, and . . . be located in the neighborhoods in which the Indians wish to live." Indian Tribes of California: Hearings Before a Subcomm. of the H. Comm. on Indian Affairs, 66th Cong. 131, at 23-24 (1920) (Report of the Special Agent for California Indians to the Commissioner of Indian Affairs, Mar. 21, 1906). The Commissioner, in turn, recommended to Congress that it appropriate money to carry out Kelsey's plan. Congress responded by appropriating $100, 000 in 1906 for the purchase of land in California for "Indians . . . now residing on reservations which do not contain land suitable for cultivation, and for Indians who are not now upon reservations." Pub. L. No. 59-258, 34 Stat. 325, 333 (1906). Congress continued to appropriate money for that purpose almost every year until the passage of the Indian Reorganization Act in 1934 made such annual appropriations unnecessary. William Wood, The Trajectory of Indian Country in California: Rancherías, Villages, Pueblos, Missions, Ranchos, Reservations, Colonies, and Rancherias, 44 Tulsa L. Rev. 317, 357-58 (2008).

         Kelsey also prepared a census of non-reservation Indians living in California. That census served as a guide for John Terrell, a Special Agent with Interior's Bureau of Indian Affairs who traveled to California in 1915. Terrell was to assess which groups of Indians were in need of land and was to negotiate purchases of land for their benefit. Terrell visited the Native Americans living near Ione and counted some 101 members of the Ione Band, including Charlie Maximo, the recently elected Chief of the Band. In a May 1915 letter to the Commissioner of Indian Affairs, Terrell wrote that, "[o]f all the Indians I have visited, " the members of the Ione Band "have stronger claims to their ancient Village than any others." After visiting the Band, Terrell almost immediately set about trying to buy some of the land on which the Band resided, for use as a permanent home for the Band.

         In August 1915, Terrell reached an agreement for the purchase of 40 acres at a total price of $2, 000. But the purchase stalled because of problems with the title to the property. For years, various officials with Interior tried to close the deal, but with no success. In a July 1923 letter, one Interior official wrote that the agency "ha[d] tried very hard for five years to get this sale through because . . . [the Ione Band], if dispossessed, would be placed in such shape as to call forth untold criticism by all people knowing the circumstances of their occupation of this land as homesites for years." A different Interior official wrote, in a January 1924 letter, that the deal was "all but closed." More than five years later, though, the transaction still had not been consummated. As one official wrote to a member of the Band in a May 1930 letter, "[w]e have for more than eight years been negotiating with owners of the [land] for the purpose of purchasing same, but because of our inability to get a clear title to the land, the deal has not been closed."

         In 1934, Congress enacted the Indian Reorganization Act ("IRA").

The IRA was designed to improve the economic status of Indians by ending the alienation of tribal land and facilitating tribes' acquisition of additional acreage and repurchase of former tribal domains. Native people were encouraged to organize or reorganize with tribal structures similar to modern business corporations. A federal financial credit system was created to help tribes reach their economic objective. Educational and technical training opportunities were offered, as were employment opportunities through federal Indian programs.

Cohen's Handbook of Federal Indian Law § 1.05, at 81 (Nell Jessup Newton ed., 2012) [hereinafter Cohen's Handbook]. Relevant to this case, the IRA gave the Secretary of the Interior the power to take land into trust for a tribe's use.

         In 1972, the California Rural Indian Land Project, acting on behalf of the Band, asked the federal government to accept title to the same 40-acre tract that the government had tried to buy years earlier and to hold the land in trust for the Band. In October of that year, Robert Bruce, the Commissioner of Indian Affairs, agreed to do so. In his letter to the Band, Bruce wrote:

Federal recognition was evidently extended to the Ione Band of Indians at the time that the Ione land purchase was contemplated. As stated earlier, they . . . are eligible for the purchase of land under [the IRA].

         The federal government did not take the land into trust at that time, however, because several officials within Interior questioned Commissioner Bruce's conclusion that the Ione Band was eligible to have land taken into trust for its benefit under the IRA. In 1973, for instance, the Deputy Assistant Secretary of the Interior wrote a letter stating that "[t]he former contemplated purchase of land for [the Ione Band] by the United States may indicate that they are a recognizable group entitled to benefits of the [IRA]. We have no correspondence, however, from the group requesting recognition or a desire to establish a reservation. . . . If the Band desires and merits Federal recognition, action should be taken to assist them to perfect an organization under the provisions of the [IRA]."

         In 1978, Interior promulgated what are known as the "Part 83" regulations, 25 C.F.R. pt. 83[1] "The purpose of [the Part 83 regulations] [wa]s to establish a departmental procedure and policy for acknowledging that certain American Indian tribes exist. Such acknowledgment of tribal existence . . . is a prerequisite to the protection, services, and benefits from the Federal Government available to Indian tribes, " including the benefits of the IRA. Procedures for Establishing That an American Indian Group Exists as an Indian Tribe, 43 Fed. Reg. 39, 361-01, 39, 362 (Aug. 24, 1978). "Prior to 1978, Federal acknowledgment was accomplished both by Congressional action and by various forms of administrative decision. . . . The [Part 83] regulations established the first detailed, systematic process for review of petitions from groups seeking Federal acknowledgment." Procedures for Establishing That an American Indian Group Exists as an Indian Tribe, 59 Fed. Reg. 9280-01, 9280 (Feb. 25, 1994).

         Following the promulgation of the Part 83 regulations, Interior began to take the position that the Band had not yet been recognized by the federal government and that it had to proceed through the Part 83 regulations if it wished to be recognized. When the Band sued the federal government in 1990, for instance, the government took the position that the Band was not a recognized tribe.

         But in 1994, the federal government changed its mind about the Band's "recognized" status. In a March 1994 letter to the Chief of the Band, Assistant Secretary of Indian Affairs Ada Deer "reaffirm[ed] the portion of Commissioner Bruce's [1972] letter" that stated that "Federal recognition was evidently extended to the Ione Band of Indians at the time that the Ione land purchase was contemplated." Assistant Secretary Deer further ordered that the Ione Band be included on the official list of "Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, " which was published in the Federal Register. The Band was included on the list beginning in 1995.

         Meanwhile, Congress passed the Indian Gaming Regulatory Act ("IGRA") in 1988. Section 20 of IGRA limits "gaming . . . on lands acquired by the Secretary in trust for the benefit of an Indian tribe after the date of enactment of" the statute, allowing gaming in just a few circumstances. Pub. L. No. 100-497, § 20, 102 Stat. 2467, 2485-86 (1988), codified at 25 U.S.C. § 2719(a). One such circumstance exists when "lands are taken into trust as part of . . . the restoration of lands for an Indian tribe that is restored to Federal recognition." Id. § 2719(b)(1)(B)(iii).[2] That exception is called the "restored tribe" or "restored lands of a restored tribe" exception.

         In September 2004, the Band submitted a request to the National Indian Gaming Commission ("Gaming Commission")[3] for an Indian lands determination-a ruling as to the eligibility of land to be used for gaming-regarding some land known as the Plymouth Parcels. While that request was pending, the Band submitted a "fee-to-trust" application to Interior, asking that the Secretary accept trust title to the Plymouth Parcels. Under then-applicable Interior practice, a fee-to-trust application seeking to use the newly acquired lands for gaming under the "restored tribe" exception of IGRA required "[a] legal opinion from the Office of the Solicitor concluding that the proposed [land] acquisition" came within the exception, and the Indian lands determination would constitute such a legal opinion. Pursuant to a memorandum of agreement between the Gaming Commission and Interior, the Associate Solicitor in Interior's Division of Indian Affairs prepared an Indian lands determination in September 2006 ("2006 Determination"). The Associate Solicitor concluded that "Assistant Secretary Deer's [1994] . . . reaffirmation of Commissioner Bruce's [1972] position amounts to a restoration of the Band's status as a recognized Band. Under the unique history of its relationship with the United States, the Band should be considered a restored tribe within the meaning of IGRA." The Associate Deputy Secretary for Indian Affairs concurred in that determination and notified the Band of his concurrence later in September 2006.[4] After receiving the 2006 Determination, the Band continued to pursue its fee-to-trust application.

         Over the next few years, Interior engaged in an internal dispute about the correctness of the 2006 Determination. While that was occurring, the Supreme Court decided Carcieri v. Salazar, 555 U.S. 379 (2009), a case that concerned the meaning of the phrase "recognized Indian tribe now under Federal jurisdiction" in the IRA. The Court ruled that a tribe must have been "under Federal jurisdiction" at the time the IRA ...

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